Supreme Court Institute Preview Primes Media for October Term 2016

September 20, 2016

Unlike previous years, the annual Supreme Court Institute press briefing on Monday, September 19, featured no talk of swing votes, 5-4 predictions or blockbusters like health care or marriage equality. Though the talk was animated and the cases interesting, the briefing was notable for what was missing at the Court: the late Justice Antonin Scalia, who died in February, and any potential successor.

“If a Democrat is elected [president] and the Democrats gain control of the Senate — if both of those things happen, it’s virtually certain that we will have a Court of nine justices for the last couple of months of the term, if not sooner,” said Georgetown Law Professor Mike Gottesman. “You could imagine the Court being willing to grant cert on more controversial cases, and they would certainly backload those until the next justice gets there for the argument.”

Yet if neither of those two events happens, he said, “you could imagine the Court going through this whole term ducking all controversial issues.”

Gottesman led a panel featuring Professor Martin Lederman, a constitutional law expert; Erin Murphy (L’06), a partner at Bancroft; Hashim Mooppan, a partner at Jones Day; and Distinguished Visitor from Practice Paul M. Smith, a partner at Jenner & Block. The SCI press briefing, held each September, explains significant cases of the upcoming Court Term to journalists who cover the Court.

Owing to the failure of the Senate to confirm a Scalia successor, at least some of this term’s cases will be heard by eight justices, not nine. What the eight justices will be hearing will include claims of racial discrimination in legislative redistricting; the denial of government funding to resurface a church playground; a discrimination challenge to a citizenship statute providing different standards for mothers and fathers of children born overseas; and the scope of insider trading rules.

“If Secretary Clinton were to be elected, and either Judge Garland or another nominee of her choosing becomes the next justice, I think this is the one area…in which there will potentially be the most volatility in the next five to ten years,” Lederman said, speaking of not just the redistricting cases but voting cases in general. “Campaign financing gets more attention — ‘will Citizens United be overruled?’” While there are many variables, he said, this could be “the area that will have the quickest change on the Court.”

Not yet on the docket — but almost certain to appear — is a case involving whether an Asian American rock band may trademark a name viewed by the U.S. Patent and Trademark Office to be derogatory.

“Whatever they do here will absolutely impact, and probably control, what happens down the line with the litigation over the Redskins trademark…,” Murphy said. “It’s one of the surest bets to make it on to the Court’s docket this term.”